[Cite as State v. Rue, 2019-Ohio-1720.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2018-T-0092 - vs - :
LAMONT MAURICE RUE, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CR 00774
Judgment: Reversed and vacated.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, Ohio 44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, Ohio 44240 (For Defendant- Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Lamont Maurice Rue, appeals the trial court’s decision revoking
community control and imposing a two-year prison term. We reverse and vacate.
{¶2} Rue raises one assignment of error:
{¶3} “The trial court erred as a matter of law by sentencing appellant to a two-
year term of incarceration.” {¶4} Rue asserts the trial court lacked jurisdiction to impose a prison term for a
community control violation because his community control had ended. The state
contends Rue’s community control had not ended but instead was tolled based on his
failure to report to his probation officer.
{¶5} Whether a court has jurisdiction to hear a case is a matter of law that we
review de novo. State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St.3d 315,
2016-Ohio-478, 56 N.E.3d 913, ¶12.
{¶6} As Rue argues, a trial court generally lacks jurisdiction to revoke community
control upon the expiration of the term, and any revocation of community control and
sentence imposed thereafter must be vacated. R.C. 2929.15(A)(1); Davis v. Wolfe, 92
Ohio St.3d 549, 552, 751 N.E.2d 1051, 2001-Ohio-1281; State v. Wright, 2nd Dist. Darke
No. 05-CA-1678, 2006-Ohio-6067, ¶16.
{¶7} R.C. 2929.15(A)(1) states:
{¶8} “The duration of all community control sanctions imposed upon an offender
under this division shall not exceed five years. If the offender absconds or otherwise
leaves the jurisdiction of the court in which the offender resides without obtaining
permission from the court or the offender's probation officer to leave the jurisdiction of the
court, or if the offender is confined in any institution for the commission of any offense
while under a community control sanction, the period of the community control sanction
ceases to run until the offender is brought before the court for its further action.”
(Emphasis added).
{¶9} Thus, although a defendant’s community control supervision is not to
exceed five years, community control “ceases to run” “if the offender absconds.”
2 {¶10} The Supreme Court has held in addressing an analogous probation
violation case that a trial court “loses jurisdiction” to impose a sentence if “the state fails
to initiate probation violation proceedings during the original probation period * * *.” State
v. Yates, 58 Ohio St.3d 78, 80, 567 N.E.2d 1306 (1991). Yates adopted the holding of
the court of appeals reversing the trial court’s imposition of prison. It explained that a trial
court loses jurisdiction to prosecute a probation violation unless revocation proceedings
are instituted during the probationary period. Id. at 79.
{¶11} Thus, consistent with the persuasive authority in Yates,
community control is not automatically tolled upon a defendant’s “absconding” or his
failure to report to his probation officer, as the state argues. Instead, “[i]t is well settled
that when the state fails to initiate community control violation proceedings during the
original term of community control, the trial court loses its jurisdiction to extend that
sanction.” State v. Fairbank, 6th Dist. Wood No. WD-06-015, 2006-Ohio-6180, ¶11.
{¶12} Further, the only reference in Yates is to the First District Court of Appeals’
decision in State v. Simpson, 2 Ohio App.3d 40, 440 N.E.2d 617 (1st Dist.1981). In
Simpson, the court of appeals addressed an appeal following the trial court’s sua sponte
extension of the defendant’s term of probation without the knowledge of the defendant,
and held:
{¶13} “When a defendant is placed on probation and absconds prior to the
expiration of the probation period, but is not declared an absconder during such original
probation period for purposes of tolling the probation period, the sentencing court
cannot sua sponte extend defendant's period of probation without the knowledge of the
probationer, his written acknowledgment of unsatisfactory compliance with the conditions
3 of his probation, or his assent to the extension thereof. Where no action is taken to
institute a probation violation hearing during the original probation period, the sentencing
court loses jurisdiction to impose the suspended sentence once the original probation
period expires.” Id. at syllabus.
{¶14} And Simpson predominantly relies on two United States Supreme Court
decisions dealing with a parolee’s right to due process, including written notice and an
opportunity to be heard, when facing parole revocation. Id. at 41, citing Gagnon v.
Scarpelli , 411 U.S. 778, 93 S.Ct. 1756 (1973), and Morrissey v. Brewer, 408 U.S. 471,
92 S.Ct. 2593 (1972).
{¶15} Furthermore, in 2011, the Ohio Supreme Court in dicta seemingly extended
its holding in Yates to community control revocation proceedings as well. State ex rel.
Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, 943 N.E.2d 1014. Upon affirming
the denial of a writ of prohibition, Unruh stated: “the [trial] court was authorized to conduct
proceedings on the alleged community-control violations even though they were
conducted after the expiration of the term of community control, provided that the notice
of violations was properly given and the revocation proceedings were commenced before
the expiration. See State v. Breckenridge, Franklin App. No. 09AP–95, 2009-Ohio-3620,
2009 WL 2196764, ¶7; State v. Semenchuk, Ross App. No. 10CA3140, 2010-Ohio-4864,
2010 WL 3904276, ¶6-7.” (Emphasis added.) Id. at ¶13. Thus, because the state
charged Hemsley with a community control violation before his
community control expired, it had jurisdiction to decide if a tolling event occurred, and as
such, a writ was not warranted because the trial court did not patently and unambiguously
lack jurisdiction to proceed. Id.
4 {¶16} Consistent with Unruh, the Fourth District Court of Appeals in State v.
Semenchuk, 4th Dist. Ross No. 10CA3140, 2010-Ohio-4864, ¶7, held that
community control “revocation proceedings held after expiration of the stated term of
community control” are permissible provided “that the notice of a violation and revocation
proceedings are commenced prior to the expiration.”
{¶17} Notwithstanding the foregoing, the state urges us to affirm the court’s
decision based on the Ninth District Court of Appeals’ decision in State v. Meyer, 18
N.E.3d 805, 9th Dist. Summit No. 26999, 2014-Ohio-3705. Meyer also relies on the Ohio
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[Cite as State v. Rue, 2019-Ohio-1720.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2018-T-0092 - vs - :
LAMONT MAURICE RUE, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2011 CR 00774
Judgment: Reversed and vacated.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, Ohio 44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, Ohio 44240 (For Defendant- Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Lamont Maurice Rue, appeals the trial court’s decision revoking
community control and imposing a two-year prison term. We reverse and vacate.
{¶2} Rue raises one assignment of error:
{¶3} “The trial court erred as a matter of law by sentencing appellant to a two-
year term of incarceration.” {¶4} Rue asserts the trial court lacked jurisdiction to impose a prison term for a
community control violation because his community control had ended. The state
contends Rue’s community control had not ended but instead was tolled based on his
failure to report to his probation officer.
{¶5} Whether a court has jurisdiction to hear a case is a matter of law that we
review de novo. State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St.3d 315,
2016-Ohio-478, 56 N.E.3d 913, ¶12.
{¶6} As Rue argues, a trial court generally lacks jurisdiction to revoke community
control upon the expiration of the term, and any revocation of community control and
sentence imposed thereafter must be vacated. R.C. 2929.15(A)(1); Davis v. Wolfe, 92
Ohio St.3d 549, 552, 751 N.E.2d 1051, 2001-Ohio-1281; State v. Wright, 2nd Dist. Darke
No. 05-CA-1678, 2006-Ohio-6067, ¶16.
{¶7} R.C. 2929.15(A)(1) states:
{¶8} “The duration of all community control sanctions imposed upon an offender
under this division shall not exceed five years. If the offender absconds or otherwise
leaves the jurisdiction of the court in which the offender resides without obtaining
permission from the court or the offender's probation officer to leave the jurisdiction of the
court, or if the offender is confined in any institution for the commission of any offense
while under a community control sanction, the period of the community control sanction
ceases to run until the offender is brought before the court for its further action.”
(Emphasis added).
{¶9} Thus, although a defendant’s community control supervision is not to
exceed five years, community control “ceases to run” “if the offender absconds.”
2 {¶10} The Supreme Court has held in addressing an analogous probation
violation case that a trial court “loses jurisdiction” to impose a sentence if “the state fails
to initiate probation violation proceedings during the original probation period * * *.” State
v. Yates, 58 Ohio St.3d 78, 80, 567 N.E.2d 1306 (1991). Yates adopted the holding of
the court of appeals reversing the trial court’s imposition of prison. It explained that a trial
court loses jurisdiction to prosecute a probation violation unless revocation proceedings
are instituted during the probationary period. Id. at 79.
{¶11} Thus, consistent with the persuasive authority in Yates,
community control is not automatically tolled upon a defendant’s “absconding” or his
failure to report to his probation officer, as the state argues. Instead, “[i]t is well settled
that when the state fails to initiate community control violation proceedings during the
original term of community control, the trial court loses its jurisdiction to extend that
sanction.” State v. Fairbank, 6th Dist. Wood No. WD-06-015, 2006-Ohio-6180, ¶11.
{¶12} Further, the only reference in Yates is to the First District Court of Appeals’
decision in State v. Simpson, 2 Ohio App.3d 40, 440 N.E.2d 617 (1st Dist.1981). In
Simpson, the court of appeals addressed an appeal following the trial court’s sua sponte
extension of the defendant’s term of probation without the knowledge of the defendant,
and held:
{¶13} “When a defendant is placed on probation and absconds prior to the
expiration of the probation period, but is not declared an absconder during such original
probation period for purposes of tolling the probation period, the sentencing court
cannot sua sponte extend defendant's period of probation without the knowledge of the
probationer, his written acknowledgment of unsatisfactory compliance with the conditions
3 of his probation, or his assent to the extension thereof. Where no action is taken to
institute a probation violation hearing during the original probation period, the sentencing
court loses jurisdiction to impose the suspended sentence once the original probation
period expires.” Id. at syllabus.
{¶14} And Simpson predominantly relies on two United States Supreme Court
decisions dealing with a parolee’s right to due process, including written notice and an
opportunity to be heard, when facing parole revocation. Id. at 41, citing Gagnon v.
Scarpelli , 411 U.S. 778, 93 S.Ct. 1756 (1973), and Morrissey v. Brewer, 408 U.S. 471,
92 S.Ct. 2593 (1972).
{¶15} Furthermore, in 2011, the Ohio Supreme Court in dicta seemingly extended
its holding in Yates to community control revocation proceedings as well. State ex rel.
Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, 943 N.E.2d 1014. Upon affirming
the denial of a writ of prohibition, Unruh stated: “the [trial] court was authorized to conduct
proceedings on the alleged community-control violations even though they were
conducted after the expiration of the term of community control, provided that the notice
of violations was properly given and the revocation proceedings were commenced before
the expiration. See State v. Breckenridge, Franklin App. No. 09AP–95, 2009-Ohio-3620,
2009 WL 2196764, ¶7; State v. Semenchuk, Ross App. No. 10CA3140, 2010-Ohio-4864,
2010 WL 3904276, ¶6-7.” (Emphasis added.) Id. at ¶13. Thus, because the state
charged Hemsley with a community control violation before his
community control expired, it had jurisdiction to decide if a tolling event occurred, and as
such, a writ was not warranted because the trial court did not patently and unambiguously
lack jurisdiction to proceed. Id.
4 {¶16} Consistent with Unruh, the Fourth District Court of Appeals in State v.
Semenchuk, 4th Dist. Ross No. 10CA3140, 2010-Ohio-4864, ¶7, held that
community control “revocation proceedings held after expiration of the stated term of
community control” are permissible provided “that the notice of a violation and revocation
proceedings are commenced prior to the expiration.”
{¶17} Notwithstanding the foregoing, the state urges us to affirm the court’s
decision based on the Ninth District Court of Appeals’ decision in State v. Meyer, 18
N.E.3d 805, 9th Dist. Summit No. 26999, 2014-Ohio-3705. Meyer also relies on the Ohio
Supreme Court’s decision in State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-
Ohio-226, 943 N.E.2d 1014, but as the Meyer dissent points out, the majority overlooks
Unruh’s statement in paragraph 13 that revocation proceedings must be commenced
before the term expires.
{¶18} Instead, Meyer relies on Unruh’s statement that it was unclear whether the
defendant’s community control period had tolled due to possible absconding, and Meyer
held that a court may still adjudicate this issue even if the proceeding to revoke
community control are not instituted within the term of community control. Meyer
explained that it is reasonable for a trial court to retain jurisdiction to determine if a tolling
event occurred. Id. at ¶16.
{¶19} Meyer also heavily relies on the fact that unlike community control,
probation was governed by the now-repealed R.C. 2951.09, which read in part: “At the
end or termination of the period of probation, the jurisdiction of the judge or magistrate to
impose sentence ceases, and the defendant shall be discharged.” And because several
5 cases relied on this repealed provision for holding that probation revocation proceedings
must be instituted prior to the expiration of the term, Meyer distinguished them.
{¶20} However, and unlike the cases cited by Meyer, neither the Supreme Court
in Yates nor the court of appeals in Yates relies on this now-repealed provision. Further
and more importantly, Meyer does not address Yates, and it does not address the due
process concerns raised by Yates. Thus, we disagree with the holding in Meyer, and
follow Yates, as good and persuasive law.
{¶21} Here, Rue pleaded guilty to burglary and was sentenced to five years
community control June 5, 2012. His community control was originally due to end June
5, 2017. Thereafter, the docket shows that two separate warrants were issued for his
arrest due to two separate probation violations.
{¶22} The first warrant for Rue’s arrest was issued March 9, 2017. This violation
was addressed in the trial court’s April 27, 2017 judgment finding a probation violation
after an April 20, 2017 hearing. The court’s decision does not state that Rue’s
community control was tolled due to absconding and consequently does not address how
long Rue’s community control tolled as a result. The court orders Rue’s
community control to continue and imposes additional conditions that he make payments
toward restitution and continue on community control until restitution is paid in full.
{¶23} Rue does not contest that he violated the terms of his community control in
2017 and concedes that his community control was tolled as a result. He asserts that his
community control was tolled from the date the court issued a bench warrant for his arrest
on March 9, 2017 until Rue was brought “before the court” on April 20, 2017, for a total of
42 days.
6 {¶24} The state, on the other hand, contends that Rue’s community control was
tolled for five months and 17 days, or 168 days, beginning November 3, 2016, the date
he initially failed to report to probation, until Rue was “brought before the court” on April
20, 2017.
{¶25} The corresponding probation report for this first violation confirms that Rue
failed to report as required by the terms of his community control beginning November 3,
2016 and that a warrant for his arrest was issued. He was arrested on March 20, 2017
and brought before the court April 20, 2017. There is no motion to revoke or written notice
of a violation in the trial court’s file, but the docket confirms that a warrant was issued
March 9, 2017.
{¶26} There is likewise no transcript before us of the April 20, 2017, violation
hearing, but regardless, neither party contends that the tolling of Rue’s
community control based on absconding was addressed at this first violation hearing.
{¶27} Assuming Rue’s community control was tolled by the 168 days alleged by
the state, then his community control would have terminated November 20, 2017, or the
original termination date of June 5, 2017 plus 168 days.
{¶28} Issues triggered by the foregoing, but that we do not decide here, include
(1) what is sufficient notice of a probation violation to satisfy due process concerns; (2) is
a notation on the docket that a warrant was issued for a probation violation sufficient to
“initiate” community control revocation proceedings; (3) does a trial court have to make
an explicit finding that a defendant absconded and that community control was tolled; (4)
and if so, must such an entry include the number of days that community control was
tolled?
7 {¶29} We do not decide the foregoing issues because none is outcome
determinative. Instead, we proceed under the best-case scenario for the state, and under
the assumption that Rue’s community control was tolled for 168 days as the state alleges,
based on his first probation violation. And even proceeding on this assumption, the
state’s tolling argument fails because Rue’s community control ended before the second
probation violation proceedings were instituted against him.
{¶30} For Rue’s second community control violation, a warrant was issued for his
arrest December 18, 2017, based in part on his failure to report to probation from June
20, 2017 until his arrest on July 17, 2018. He was “brought before the court” for this
violation on August 23, 2018. Thus, the state argues that Rue’s
community control “ceased to run” from the date he failed to report until he was brought
before the court.
{¶31} The trial court held the second probation revocation hearing August 23,
2018, and Rue’s counsel argued the court lacked jurisdiction. The trial court disagreed,
stating in part that his community control was continued because he failed to pay
restitution. While a court can extend a defendant’s community control for the failure to
pay restitution, if paying restitution is a condition of community control, a court cannot
extend community control beyond the five-year limit in R.C. 2929.15(A)(1) for this reason.
State v. Sheesley, 9th Dist. No. Summit, 27585, 2015-Ohio-4565, 46 N.E.3d 1134, ¶7.
{¶32} Upon addressing whether Rue’s community control was tolled and whether
the court had jurisdiction to revoke his community control, the following exchange
occurred:
8 {¶33} [Rue’s attorney]: “to clarify, we believe the max amount of community
control that could be imposed is five years, and that even with - - that it couldn’t be
extended beyond that five years. And the one month it was tolled for the previous warrant
would still have been expired before the second [probation] violation.
{¶34} “THE COURT: The Court disagrees with you. It was continued as a
sanction for multiple violations before.”
{¶35} Aside from its apparent finding on this issue at the hearing, the court’s
corresponding judgment is silent on tolling and whether it had jurisdiction to terminate
Rue’s community control. The trial court notes it considered the probation reports in its
judgment entry: “the Court has considered the record, the violations in the probation
status report * * *.” Although probation reports are hearsay, the Rules of Evidence do not
apply to community control proceedings. Evid.R. 101(A)(3).
{¶36} Notwithstanding the trial court’s finding that it had jurisdiction to revoke
Rue’s community control, it did not. No community control revocation proceedings were
initiated with the court until after his community control expired. And even assuming the
December 18, 2017 warrant for Rue’s arrest was sufficient to initiate the revocation
proceedings, it was not issued until after Rue’s community control term had already
expired.
{¶37} The trial court lacked jurisdiction to address Rue’s probation violations even
though they occurred during his period of community control because no
community control revocation proceedings were instituted during his term of supervision.
Yates, supra. Had the violation proceedings been initiated before Rue’s
community control expired, the trial court would have had jurisdiction to decide whether
9 his community control tolled based on his failure to report or “absconding.” State v.
Johnson, 7th Dist. Mahoning No. 09-MA-94, 2010-Ohio-2533, ¶31.
{¶38} Regardless of when the tolling events occur, “when no action is taken to
commence a probation violation hearing during the original probation period, the court's
subject matter jurisdiction ends when the period of probation ends. See, e.g., State v.
Jackson (1988), 56 Ohio App.3d 141, 565 N.E.2d 848; State v. Simpson (1991), 2 Ohio
App.3d 40, 440 N.E.2d 617; State v. Yates (1991), 58 Ohio St.3d 78, 567 N.E.2d
1306; and State v. Sapp (June 11, 1983), Wood App. No. 92WD094.” In re Walker, 10th
Dist. Franklin No. 02AP-421, 2003-Ohio-2137, ¶20.
{¶39} Here, the state did not institute Rue’s community control revocation
proceedings for his second violation before the end of his term of community control.
Thus, the court was without jurisdiction to decide if tolling occurred or sentence Rue to
prison, and as such, we are required to reverse and vacate its decision imposing a two-
year prison term. State v. Craig, 8th Dist. Cuyahoga No. 84861, 2005-Ohio-1194, ¶7.
{¶40} The trial court’s decision is reversed and vacated.
TIMOTHY P. CANNON, J.
MATT LYNCH, J.
concur.